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HomeMy WebLinkAboutBarnes & Thornburg/Letter of EngagementBARNFS &THORNBURG LLP Brian L. Burdick Partner (317) 231 -7393 brian.hurdick ©btiaw.com City of Carmel Redevelopment Commission Attn: William Hammer, President 30 W. Main Street, Suite 220 Carmel. lndiana 46032 Re: Engagement Letter For Legal Sen'ices Dear Mr. Hammer: 11 South Meridian Street Indianapolis, IN 46204 -3535 U.S.A. (317) 236 -1313 Fax (317) 231-7433 Ww v.bdaWeun May 13, 2014 We are very pleased to serve as special counsel to the City of Carmel Redevelopment Commission (the "Commission "), regarding general advice on redevelopment matters. This letter confirms the terms on which our Firm serves as counsel to the Commission in this matter. I am enclosing our Standard Terms of Engagement for Legal Services (March 2012) setting forth the standard terms upon which our Firm accepts client engagements. Our engagement by the Commission in this platter will he governed by these standard terms to the extent not expressly modified by this letter. In particular, by signing this letter, you agree that we may represent other clients in certain matters adverse to you as described in the standard terms under the caption "Waiver of Certain Potential Conflicts of Interest ". Conflicts of Interest It is important from the outset of our relationship that we have a clear understanding as to the identity of our client. Our only client in this platter is the Commission and not any of its separate agencies, commissions, authorities or boards, nor any of its officers or employees. You have agreed that our representation of the Commission in this matter will not give rise to any attorney - client relationship between our Firm and these other entities or personnel of the Commission. You have also agreed that, during the course of our representation of the Commission in this matter, our Firm will not be given any confidential information regarding any other agency, instrumentality, officer, employee or other affiliate of the Commission unless it is identified as such. Accordingly, and subject to the above, our Firm's representation of the Commission in this platter will not give rise to any conflict of interest in the event other clients of our Firm are adverse to any other entity or personnel of the Commission. As you are aware, our firm represents many other companies and individuals in various matters unrelated to this engagement. It is possible that, during the time we are representing the Commission in this engagement, some of our present or future clients will have disputes or transactions with the Commission. Atlanta Chicago Delaware Indiana Los Angeles Michigan Minneapolis Ohio Washington, D.C. City of Carmel Redevelopment Commission William Hammer, President May 13, 2014 Page 2 of 4 Under Rule 1.7(a) of the Indiana Rules of Professional Conduct, we are precluded from representing a client if the representation of that client will be directly adverse to another client. unless (1) we reasonably believe the representation will not adversely affect our relationship with the other client and (2) each client consents after consultation. Furthermore, under Rule 1.7(b) of the Indiana Rules of Professional Conduct, we are precluded from representing a client if the representation of that client may be materially limited by our responsibilities to another client or to a third person, or by our own interests. unless (1) we reasonably believe that representation will not be adversely affected and (2) our client consents after consultation. Loyalty is an essential element to a lawyer's relationship to a client. As a general proposition, loyalty to a client prohibits undertaking representations directly adverse to that client without the client's consent. Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests; the conflict in effect forecloses alternatives that would otherwise he available to the client. As a condition of our undertaking to represent the Commission in this engagement, you agree and consent to our firm's representation of any existing or new clients in any existing or new matters that are not substantially related to our representation of the Commission in this engagement, even if the interests of such clients in such other natters are directly or indirectly adverse to the Commission's interests. The Commission agrees, that we may continue to represent or may undertake in the future to represent any existing or new client in any matter that is not substantially related to our work for the Commission even if the interests of such client in such other natter are directly adverse to the Commission. We agree, however, that the Commission's prospective consent to conflicting representation contained in the preceding sentence shall not apply in any instance where, as a result of our representation of the Commission, we have obtained proprietary or other confidential information of a nonpublic nature, that, if known to such other client, could be used in such other matter by such other client to the material disadvantage of the Commission. Fees and Charges Our fees in this matter are based on the hours actually worked by each lawyer and legal assistant involved in this matter. These fees will be computed using the hourly billing rates for the lawyer and legal assistant and the type of work involved that are in effect at the time you are billed for the work. Generally speaking, our hourly billing rates vary in accordance %with the experience and seniority of the lawyers performing the services and the type of services performed. These hourly billing rates are adjusted annually, typically in December. In addition to our fees, you will be responsible for payment of our other charges as set forth in our Standard Terms of Engagement for Legal Services. Termination of Services You may terminate our engagement as counsel in this matter at any time simply by notifying us. We may terminate our engagement for nonpayment of our fees and other charges and where we are required or permitted to do so by the Rules of Professional Conduct after giving you reasonable notice and allowing time for you to engage successor counsel, if necessary. BARNES &THORNBURG LLP City of Carmel Redevelopment Commission William Hammer, President May 13, 2014 Page 3 of 4 General I will assume primary responsibility for ensuring that the Commission's needs are satisfied. Under my supervision, your work or parts of it may be performed by other lawyers and legal assistants in the firm. This delegation may he for the propose of involving lawyers or legal assistants with experience and knowledge in a given area or for the purpose of providing services on the most efficient and timely basis. Whenever practicable, 1 will advise you of the names of all lawyers and legal assistants who work on your matters and who hill the Commission for their services. Our legal assistants are not lawyers but possess training, experience and skills that enable them to assist our lawyers in discharging their responsibilities. They include law clerks (typically law students), paralegals, investigators, research librarians, environmental analysts, translators, draftsmen and other technical (non - lawyer) specialists. 1 will coordinate our firm's work on this matter. From time to time other lawyers and legal assistants at the firm will work on this matter, depending upon their expertise and experience. Bruce Donaldson will be one of these lawyers. My responsibilities include selecting personnel to provide our services to you in a cost - effective manner. The Firm's Standard Terns of Engagement for legal Services are expressly modified as follows, absent prior permission from the City to the contrary: L The Commission will not be charged for messenger, courier, or express delivery charges when reasonable time management would allow service by regular U.S. Mail or by electronic means. 2. The Commission will not be charged over $0.10 per page for 13 /W photocopies or over $025 per page for color photocopies. 3. The Commission will not be charged more than 55.5 cents per mile for travel expenses nor more than $15.00 per day for meal expenses. 4. The Commission will not be charged for facsimile transmissions except for the actual cost of long distance transmissions that originate from our Finn. 5. The Commission will be charged only for the actual cost of binders and other office supplies not normally included in our hourly rate. 6. The Commission will not be charged for staff overtime. 7. The Commission will be charged only for the time of the person with the highest hourlv rate when more than one Firm lawyer or staff person is involved in an infra -office communication or a teleconference call. 8. The Commission will not be charged for the time taken by more than one Firm employee to review a court order, to calendar a hearing or otherwise relevant date, or to review a legal document or research memo. BARNES&THORNBURG LLP City of Carmel Redevelopment Commission William Hammer, President May 13, 2014 Page 4of4 9. The Commission will not be charged for the attendance of more than one Firm attorney at meetings or hearings, except that two Firm attorneys may represent the Commission at trial. 10. The Commission will only pay for the actual cost of computer research. Conclusion If this letter accurately sets forth our agreement and your understanding, please so indicate in the space provided below and return a signed copy of this letter to me. We ask you to acknowledge that, in reviewing and executing this letter, you have not relied on any advice provided by our Firm but instead have acted solely in reliance upon the advice of other counsel. We are pleased to have this opportunity to be of service and to work with you. 131,13:Is Enclosure cc: Bruce D. Donaldson ACKNOWLEDGED AND AGREED: CITY OF CARMEL REDEVELOPMENT CONDIISSION William Hammer, President Date: cJ V N£, IQ, 11011- INDS01 BIB 1418020v2 BARNES &THORNBURG LLP Sincerely yours, Brian L. Burdick CITY OF CAR:MEL DEPARTMENT OF REDEVELOPMENT By Date: Con ie Meyer, Direct BARNES & THORNBURG LLP STANDARD TERMS OF ENGAGEMENT FOR LEGAL SERVICES This statement sets forth the standard terms upon which Barnes & Thornburg LLP accepts engagements to act on behalf of its clients. Unless modified in writing by mutual agreement, these terms will be an integral part of our agreement with you. Therefore, we ask that you review this statement carefully and write us promptly if you have any questions. We suggest that you retain this statement in your file. Our Client The person or entity that we represent is the person or entity identified in our engagement letter and does not include any affiliates or relatives of such person or entity. This means that, unless we specifically agree otherwise, we do not have any lawyer - client relationship with your subsidiaries, parent company or other business entities in a commonly controlled group, nor with your owners, shareholders, members, managers, partners, directors, officers, employees or agents, nor, if you are an individual, with your spouse, children or other family members. Therefore, our representation of you will not impair our ability to represent another client with interests adverse to any such affiliate or family member without obtaining your consent. Particularly in the case of business entities that are part of complex corporate structures, we are very frequently not in a position to determine what entities may be affiliated with a client, or what the nature of that affiliation may be. So we understand that you agree that we will not have a client relationship with any of your affiliates as described above, regardless of any internal arrangements for the management and affairs between our client and any such affiliate, or any operational commonality among such entities such as consolidated administrative services, common in -house legal functions, or any overlapping officers, directorships or ownership. If you have any concerns about this agreement or its implications, you should bring this to our attention forthwith. The Scope of Our Work With new clients, we follow the practice of describing the scope of our initial engagement in the letter we send accepting employment. W ith existing clients, we may not provide a description as to new natters upon which we are asked to provide services depending on the circumstances, but we will always be willing to provide such a description if asked. In any engagetnent we will limit our services to those you ask us to perform and those we deem reasonably necessary to accomplish the requested services. By way of illustration, we will not investigate or opine on claims against third parties or insurance coverage that is or may be available unless it is so stated in our engagement letter or you have specifically requested that we do so. Where you request specific services or advice or otherwise limit our engagement, we will confine our activities to those limitations. In that event, you should understand we will not investigate or advise you on other areas of law or potential consequences or issues arising outside these parameters. We will likewise limit our engagement and scope of services as requested to accommodate instructions to avoid incurring costs or to limit the amount of fees we incur. Such limitations may result in our not taking steps or performing work that we would otherwise consider advisable. At times we are asked by our clients to express our opinion as to the outcotne of the matters on which we are working. Such evaluations are necessarily limited by our knowledge of the facts and are based on the state of the law at the time they are expressed. The outcome of legal matters and proceedings cannot be predicted with certainty. Who Will Provide the Services Customarily, each client of our Firm is served by a principal lawyer contact. The principal lawyer should be someone in whom you have confidence and with whom you enjoy working. You are free to request a change of principal lawyer at any tine. Under the supervision of the principal lawyer, your work or parts of it may be perforated by other lawyers and legal assistants in the Firm. This delegation may be for the purpose of involving lawyers, legal assistants, or other professionals with experience and knowledge in a given area or for the purpose of providing services on the most efficient and timely basis. Whenever practicable, we will advise you of the names of those lawyers, legal assistants and other professionals who work on your matters. Our legal assistants and other professionals are not lawyers but possess training, experience and skills that enable them to assist our lawyers in discharging their responsibilities. They include law clerks (typically law students), paralegals, lobbyists, investigators, patent agents, research librarians, environmental analysts, translators, draftsmen and other technical (non - legal) specialists. How Fees Will Be Set In determining the fees we will charge for the legal services we will render for you, we will consider a number of factors, including: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; The amount of money or value of properly involved and the results obtained; The time limitations imposed by you as our client or by the circumstances of the engagement; • The experience, reputation and ability of the lawyers performing the services; and • The likelihood that the employment will preclude other employment by our Firm. Among these factors, the time and effort required are typically weighted most heavily. We will keep records of the time we devote to your work, including conferences (both in person and over the telephone), negotiations, court appearances, factual and legal research and analysis, document preparation and revision, and other related matters. We strongly believe that peer discussion and review is an important element of providing quality services, and so our time records will often reflect discussions between lawyers within our Firm concerning the matters in which we have been engaged. The hourly rates of our lawyers and legal assistants applicable to the type of engagement have an important bearing on the fees we charge but are not necessarily the sole basis on which those fees are charged. Even where hourly rates are used as the primary basis of computing our fees, they can and will be adjusted up or down according to the circumstances. Our hourly rates are reviewed at least annually and may be changed periodically to reflect current levels of experience of the lawyers and legal assistants involved, changes in overhead costs, and other factors. Our statements based on hourly rates will reflect our applicable rates at the date of the statement, regardless when the work covered by the statement was performed. We are sometimes requested to estimate the amount of fees and costs likely to be incurred in connection with a particular natter. Whenever possible we will furnish such an estimate, but always with a clear understanding that it is not a maximum or fixed fee quotation. The ultimate cost is invariably more or less than the amount estimated. Other Charges In representing our clients, there typically are other charges in addition to our fees that we itemize separately and bill to them. These include fees charged by government agencies and charges from service vendors, as well as clerical charges. Typical of such charges are messenger, courier and express delivery charges; photocopying, desktop publishing or printing and reproduction charges; filing fees and charges, including charges for electronic filings with governmental agencies and courts; court reporter fees for deposition transcripts and the like; witness fees; travel expenses; computerized legal research charges; and charges made by outside experts and consultants, including accountants, appraisers and other legal counsel (unless arrangements have been made for such outside experts and consultants to bill the client directly). Certain of these other charges may represent more than our direct cost to contribute toward covering our overhead expenses. We incur outside charges as agents for our clients, who agree that these charges will always be paid on a regular basis. We may require that you pay significant expenses directly or in advance. In some engagements that raise issues of foreign law it is necessary for us or the client to engage foreign counsel. If we engage foreign counsel on your behalf, we will typically require you to pay us for the foreign counsel's anticipated fees and charges before we remit payment to foreign counsel, and potentially before we engage them. We are not guarantors of the work of foreign counsel nor are we in a position to review the adequacy of their legal work or translation of documents. We engage foreign counsel to assist us specifically because we are not licensed or familiar with the applicable legal system and therefore are not in a position to provide those legal services or judge their adequacy. If you wish to participate in the selection of foreign counsel, you may do so. "Perms of Payment We will bill you on a regular basis, normally each month, for both fees and other charges. We rely on you to pay us promptly. Our fees and charges are due when you receive our statement. Also, if you do not pay us within 30 days of our statement or as otherwise agreed, you agree that we may discontinue providing services immediately and withdraw from representing you after providing reasonable notice of our intention to do so. After withdrawal, we may pursue collection of your account. You also agree that until we are paid in full on all of your legal matters, and except to the extent otherwise prohibited or limited by law, we shall have a lien on all papers and files in our possession related to any of the matters in which we have represented you, and any property recovered or obtained as a result of our work on your behalf. You agree to pay the costs of collecting the debt, including court costs, filing fees and reasonable attorneys' fees. The First also reserves the right in its sole discretion to require an advance deposit at any time based on past payment history, creditworthiness or other factors that may cause the Firm to conclude it is appropriate to do so. Advance Deposits New clients of our Firm will ordinarily be asked to make an advance deposit with the Firm. Existing clients may also be required to provide advance deposits for particular matters if the Firm believes that is appropriate under the circumstances. Typically, the advance deposit is equal to the fees and other charges likely to be incurred during a two -month period. The advance deposit is charged for fees and other charges as our legal services are provided. Regular statements will be furnished to you for purposes of disclosing the fees and other charges which have been deducted from the advance deposit and the amount which must be paid to replenish the advance deposit to the agreed level. If the advance deposit proves insufficient to cover current fees and other charges on the basis stipulated, we may request that the balance be increased. At the conclusion of our legal representation or at such time as the advance deposit is no longer necessary or is appropriately reduced, the remaining balance of it will be returned to you. Any advance deposit we receive from you will be held in our trust account until it is charged for fees and other charges for your account or is returned to you. No interest is paid on amounts held by us in our trust account. In particular, court rules in jurisdictions in which we practice require that interest earned on pooled client trust accounts is payable to a charitable foundation established in accordance with the court's rule. While your advance deposit is held by us in our trust account, it remains your property. However, by staking the initial advance deposit and by replenishing or increasing it from time to time, you grant us a security interest in the balance of the advance deposit we hold in our trust account from time to time to secure payment of incurred fees and other charges for which you are responsible. You authorize us to apply the deposit to any fees and charges that you owe us for any services we have provided. Other deposits that we receive to cover specific items will also be held by us in our general trust account (without interest) and disbursed as provided in our agreement with you, and you will be notified from time to time of the amounts applied or withdrawn. Any amount remaining after disbursement will be returned to you. Waiver of Certain Potential Conflicts of Interest As you are aware, we have over 500 lawyers and other professionals representing thousands of clients in various states, so it is foreseeable that our representation of our other clients may be or become directly adverse to your interests from time to time in matters on which our firm is not representing you. The Rules of Professional Conduct governing lawyers generally prohibit a lawyer or law firm from representing one client in a matter directly adverse to another client unless the affected clients provide informed consent confirmed in writing. In accordance with such Rules, by agreeing to our engagement letter, you consent that our Firm may represent any other clients in matters that are not substantially related to the natters on which we are representing you, even where our representation of such clients may be or become directly adverse to your interests. For example, such representations may include advising our other clients 0) on the scope of your property rights, (ii) in transactions with you or negotiating or interpreting legal documents that affect your rights: (iii) on the existence, assertion or defense of legal claims against you or that you may have against our other clients; or (iv) on any disputes with you, even in court. You should bear in mind that your consent authorizes us to take on unrelated representations for other parties or entities to whom we are adverse in natters, transactions or disputes on which we represent you. Of course, the foregoing consent does not affect our obligation to protect confidential information you share with us in connection with our representation of you and not to use such information to your detriment. Services We Expressly Do Not Provide Lawyers in our law firm may from time to time serve in elected or appointed positions with various governmental or regulatory bodies. Members of our law firm must discharge those duties without regard to their employment or association with the Firm, and more importantly, it would be a prohibited conflict of interest for then to give any special consideration, benefit, or access to you or any other client of the Firm. Accordingly, you acknowledge and confirm that your engagement of the Firm is not in consideration for or in contemplation of any expected benefit to be derived from the activities of any elected or appointed official. Client Responsibilities You agree to be truthful with us, to cooperate fully with us, to provide promptly all information (including documents and electronic data) known or available to you relevant to our representation. if your engagement involves actual or potential claims or litigation, you have an obligation to preserve potentially relevant information, including electronic data. It is important for you to ensure automatic deletions or record retention policies are suspended as necessary to ensure this information is preserved. You should discuss these issues with us at the outset of our engagement involving any claim or litigation, unless you have a sophisticated document retention policy and program that addresses these matters and you are familiar with these requirements. You should also discuss these issues with us as soon as a dispute or litigation related to any matter on which you have engaged us becomes reasonably foreseeable. You also agree to respond promptly to our requests for direction and other communications and to attend meetings and court proceedings at our request. You also agree to pay our statements for services and other charges in accordance with these terns of engagement. Use of Publicly Available Information We will always protect nonpublic, confidential information related to your representation in accordance with our professional obligations. It is, however, helpful for us to be able to describe our experiences in the practice of law to assist others in choosing counsel and for other business reasons. Accordingly, we understand that you authorize us, unless you specifically, instruct us to the contrary, to truthfully disclose or describe to others information related to our representation of you that is otherwise publicly available (e.g. in public filings, government publications, press releases, on the Internet and the like). Termination and Withdrawal You may terminate our representation of you at any time without cause simply by notifying us. Your termination of our services will not affect your responsibility for payment of fees and other charges incurred before termination and in connection with an orderly transition of the matter. We are subject to the Rules of Professional Conduct that require or allow us to withdraw from representing a client in various circumstances. These may include any circumstances in which withdrawal can be accomplished without material adverse effect on the interests of the client. Among other circumstances that may give rise to withdrawal, subject to the Rules of Professional Conduct, we may withdraw from representing you if you do not fulfill your client responsibilities to us, including failure to pay our fees and charges, or if we determine that our relationship has become impaired, such as by your failure to follow our advice relating to a representation. We try to identify in advance and discuss with you any situation that may lead to our withdrawal and, if withdrawal ever becomes necessary, will give you prompt written notice of our withdrawal. Unless previously terminated, our representation of you in any natter will terminate upon our completion of the services you retained us to perform. Generally, this will be indicated by your receipt of our final statement for services rendered on that matter. Except where applicable laws require otherwise, you agree that the following provisions will govern the way we handle materials and records related to our representation of you. We typically store the materials we retain in electronic form. We do not keep our copies of such materials and records indefinitely. We will discard or delete the materials we retain related to your representation when we believe it is reasonable to do so, without further notice to you Accordingly, you are strongly encouraged to keep your own files related to our representation, especially the important legal documents. So that you can do so, we will provide you with copies of materials we have retained whenever you request them during our representation. Even after your matter is completed, on request we will provide you with copies in electronic form of any materials we still have to which you are entitled. You agree to pay our charges for retrieving and copying materials for you, and any other fees and charges that remain outstanding in connection with our representation of you. We may require such payment before delivering such materials. You authorize us to follow these procedures without providing you further notices or seeking further instructions in the future. Our representation of you in any matter is limited to that specific matter, and will not give rise to any ongoing attorney - client relationship. After termination of our representation of you in any matter, we may from time to time represent you in such subsequent matters as you may request. However, we are under no obligation to represent you in any subsequent matters, and nothing herein should be construed to give rise to any attorney - client relationship after such termination. If we do undertake to represent you in any subsequent matter, the scope and duration of our representation will be limited to that specific subsequent matter and, unless we expressly establish new terms of engagement with you at that time, these terms of engagement will apply. Lawyers sometimes become personally entangled in court proceedings in connection with their clients' matters. If our Firm or any of our lawyers or staff are named as a party, or are required to produce evidence or appear, in a legal proceeding as a result of our services perforated for you (other than as a result of our misconduct or negligence), you agree, even after our representation has terminated, to pay us for our lawyers and non - lawyers' time and other charges and advances incurred in connection with our defense or participation in such proceeding, on the same basis that applies to our standard hourly fees and charges in effect at the time. After termination of our representation of you in any matter, changes may occur in applicable laws or regulations that could have an impact upon your rights and liabilities. Unless you subsequently engage us to provide such advice on the same matter, our Firm has no continuing obligation to advise you with respect to future legal developments. March 2012